NON- PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-3097
_____________
ANA LETICIA PADILLA-MALDONADO; E.J.P.,
Petitioners
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos.: A208-546-483 and A208-546-484)
Immigration Judge: Honorable Lisa de Cardona
Submitted under Third Circuit L.A.R. 34.1(a)
on July 10, 2018
Before: SHWARTZ, NYGAARD, and RENDELL, Circuit Judges.
(Opinion filed: October 9, 2018)
___________
O P I N I O N*
___________
RENDELL, Circuit Judge:
Ana Leticia Padilla-Maldonado (“Padilla-Maldonado”), a Salvadoran victim of
domestic abuse, petitions for review of an order of the Board of Immigration Appeals
(“BIA”) denying her application, on behalf of herself and her minor son, E.J.P., for
asylum, withholding of removal, and protection under the Convention Against Torture
(“CAT”). The BIA agreed with the Immigration Judge (“IJ”), who found that Padilla-
Maldonado had failed: (1) to corroborate her testimony with statements from her current
partner and aunt or sufficiently explain her failure to do so, and thus did not meet her
burden of proof of eligibility for asylum and withholding, and (2) to demonstrate, for
purposes of her CAT claim, a likelihood of torture by, or with the acquiescence of, the
Salvadoran government. Because it appears that the IJ did not provide Padilla-Maldonado
with notice of the corroboration the IJ would require from Padilla-Maldonado’s partner
and aunt, we will grant the petition in part and remand as to the asylum and withholding
claims. With respect to the CAT claim, however, because substantial evidence supports
the BIA’s ruling, we will deny the petition. On remand, the IJ should also consider
whether, in light of the Attorney General’s overruling of Matter of A-R-C-G-, Padilla-
*
This disposition is not an opinion of the full Court, and pursuant to I.O.P. 5.7, does not
constitute binding precedent.
2
Maldonado has established membership in a particular social group in order to be eligible
for asylum.
I. Factual Background
Padilla-Maldonado and her son are natives and citizens of El Salvador. They
entered the United States near Hidalgo, Texas, in October of 2015, after escaping alleged
domestic abuse at the hands of her former partner, Santos Pablo Almendarez (“Pablo”).
Padilla-Maldonado and Pablo began dating in 2012, when Pablo lived with Padilla-
Maldonado’s aunt, Petrona. They eventually moved in together and lived with E.J.P.
(who is not Pablo’s son), Petrona, Petrona’s husband, and several cousins.
In June or July of 2015, Padilla-Maldonado expressed to Pablo that she wished to
end their relationship. Around the same time, she began a long-distance relationship with
Ismael Turcios, a former acquaintance who lived in the United States, and with whom
Padilla-Maldonado currently lives and has a U.S. citizen son. Padilla-Maldonado testified
before the IJ that once Pablo learned that Padilla-Maldonado was communicating with
Turcios in August of 2015, he became physically abusive toward her.
The first assault occurred when Pablo woke Padilla-Maldonado up in the middle
of the night, grabbed her by the neck, and threatened to “kill her and make her child
disappear.” A.25–26; A. 52.1 The second assault happened while Padilla-Maldonado was
speaking with Turcios. Pablo again grabbed Padilla-Maldonado by the neck, when E.J.P.
1
It is unclear whether E.J.P. and Padilla-Maldonado’s cousins, who were sleeping in the
same room, were awoken by this assault.
3
approached, asking for food, and Pablo threatened E.J.P., as well. Pablo also seized
Padilla-Maldonado’s phone, which inadvertently recorded the encounter with E.J.P. and
sent it to Turcios.
A third physical assault occurred when Pablo grabbed Padilla-Maldonado by her
hands and bruised her, before Petrona arrived and stopped him. Thereafter, Padilla-
Maldonado went to a private clinic to have her injuries examined and to consult the
doctor about not sleeping due to the abuse. The doctor prescribed medication,
administered an injection, recommended an x-ray, and noted Padilla-Maldonado’s bruises
on her left hand from her “life partner,” who “suppressed [Padilla-Maldonado’s]
departure to consult with [the] doctor.” A. 98. The doctor also wrote, “Patient with a state
of panic, anxiety and depression who at the time with nervous breakdown is given
treatment.” Id.
In addition, Padilla-Maldonado testified that during August and September of
2015, Pablo raped her approximately two times a week. Each time, Pablo would rape her,
throw her down, hit her, and threaten to kill her and make her children disappear. Padilla-
Maldonado attested that although others slept in the same room as she, none were
awakened by these incidents, because Pablo threatened her not to scream, and because
sometimes she was raped outside, on her way to her grandparents’ house, or in a wooded
area.
Padilla-Maldonado testified that she did not report this abuse to the police because
Pablo told her she would not be believed if she did. She claimed that she feared Pablo had
gang affiliations, but was not certain—her fears were based on his having made gang
4
symbols or signs, and on rumors that Pablo was spending time with gang members.
Similarly, Padilla-Maldonado claims she did not go to the hospital for fear of having to
answer questions about her injuries.
Finally, Petrona encouraged Padilla-Maldonado to seek refuge in the United
States. On September 26, 2015, Padilla-Maldonado and E.J.P. left El Salvador for the
United States. Padilla-Maldonado and Pablo have not been in contact since that date.
II. Procedural History
Padilla-Maldonado applied for asylum, withholding, and protection under the
CAT on behalf of herself and E.J.P., who is a minor. At Padilla-Maldonado’s asylum
hearing before the Immigration Court, the IJ found that Padilla-Maldonado had failed to
corroborate her testimony and allegations of abuse with readily available evidence and
noted inconsistencies in her testimony. Thus, the IJ denied Padilla-Maldonado’s claim to
asylum or withholding because of her failure to meet her burden of proof to demonstrate
past persecution or a well-founded fear of future persecution due to her membership in a
particular social group. The IJ also denied her CAT claim for a failure to demonstrate that
it is more likely than not that Padilla-Maldonado would be tortured upon return to El
Salvador, either by the government or at its acquiescence. The BIA affirmed the IJ’s
determination that, due to her failure to adequately explain her lack of corroboration,
Padilla-Maldonado did not meet her burden of proving her eligibility for asylum or
withholding. Finally, the BIA affirmed the IJ’s determination that Padilla-Maldonado had
5
not demonstrated her eligibility for protection under the CAT, for the same reasons as
articulated by the IJ.
III. Jurisdiction and Standard of Review
We have jurisdiction to review final orders of the BIA pursuant to 8 U.S.C.
§ 1252(a)(1). Where the BIA issues an independent decision that relies on an IJ’s legal
conclusions and findings of fact, we review both the IJ’s decision and the BIA’s.
Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d Cir. 2009). We uphold the BIA’s decision if
the findings of fact are supported by substantial evidence. INS v. Elias-Zacarias, 502 U.S.
478, 481 (1992); Camara v. Att’y Gen., 580 F.3d 196, 201 (3d Cir. 2009). “Under that
deferential standard, we must uphold the agency’s determination unless the evidence
would compel any reasonable fact finder to reach a contrary result.” Gonzalez-Posadas v.
Att’y Gen., 781 F.3d 677, 684 n.5 (3d Cir. 2015).
IV. Asylum and Withholding of Removal
To qualify for asylum, it is the applicant’s burden to prove that she is “unable or
unwilling to return to, and is unable or unwilling to avail himself or herself of the
protection of, that country because of [past] persecution or a well-founded fear of [future]
persecution on account of race, religion, nationality, membership in a particular social
group, or political opinion.” Garcia v. Att’y Gen., 665 F.3d 496, 503 (3d Cir. 2011)
(quoting 8 U.S.C. § 1101(a)(42)(A)); see also 8 C.F.R. § 1208.13. To be eligible for
withholding of removal, an applicant must show “a clear probability of persecution.” INS
6
v. Stevic, 467 U.S. 407, 430 (1984).
The IJ found cognizable Padilla-Maldonado’s particular social group, “Salvadoran
women in domestic relationships who are unable to leave,” which paralleled the proposed
social group in Matter of A-R-C-G-, 26 I & N Dec. 388 (BIA 2014), “married women in
Guatemala who are unable to leave their relationship.” A. 30.2 The IJ determined that
Padilla-Maldonado did not meet her burden of proof to corroborate her otherwise credible
testimony.
“Where the trier of fact determines that the applicant should provide evidence that
corroborates otherwise credible testimony, such evidence must be provided unless the
applicant does not have the evidence and cannot reasonably obtain the evidence.” 8
U.S.C. § 1158(b)(1)(B)(ii). This is particularly true when the testimony that requires
corroboration is “central to an applicant’s claim.” Sandie, 562 F.3d at 252. We held in
Chukwu v. Attorney General, “the IJ must give the applicant notice of what corroboration
will be expected and an opportunity to present an explanation if the applicant cannot
produce such corroboration.” 484 F.3d 185, 192 (3d Cir. 2007). Additionally, before an IJ
or the BIA may conclude that the applicant failed to meet her burden of proof due to a
lack of corroboration, there is a three-part inquiry: the adjudicator must 1) identify facts
where corroboration is reasonably expected; 2) determine whether the applicant has
corroborated these facts; and 3) if not, determine whether there is an adequate
2
The Government submitted a letter pursuant to Fed. R. App. P. 28(j) informing the
Court that the Attorney General has overruled the Board’s decision in Matter of A-R-C-
G- finding this particular social group to be cognizable. Matter of A-B-, 27 I & N Dec.
316, 317 (A.G. 2018). We will discuss this infra section V.
7
explanation for the inability to corroborate. See Sandie, 562 F.3d at 253; Abdulai v.
Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001).
Specifically, the IJ identified three parts of Padilla-Maldonado’s testimony where
she failed to corroborate her claims or explain her failure to do so, when such
corroboration “should reasonably be expected.” A. 29. First, the IJ found it curious that
Turcios—who lives with Padilla-Maldonado, was threatened by Pablo, and received the
recording of an incident in which Pablo was abusive to Padilla-Maldonado—failed to
testify or provide a written statement. When probed as to the reason for Turcios’s
absence, Padilla-Maldonado stated that he was working and did not receive permission to
come and testify, because after he accompanied Padilla-Maldonado to prior appointments
with her doctor or lawyer, he was instructed not to miss work further.
Second, the IJ noted that Padilla-Maldonado and Turcios were unable to save or
submit copies of the threatening text messages Pablo sent Turcios, or the recording
wherein Pablo threatened E.J.P. When questioned by the Government, Padilla-
Maldonado stated that Turcios was no longer using that phone and thus she was unsure
whether the call data was retrievable. Padilla-Maldonado also testified that the phone
data had been wiped.
Third, the IJ questioned why Petrona, who lived with Padilla-Maldonado during
the abuse and who knew Pablo for many years, did not submit an affidavit or testify
before the IJ regarding the abuse. At first, Padilla-Maldonado explained that Petrona had
been kidnapped by the Zeta cartel in Mexico, but then revealed that Petrona had been
8
released after her family paid ransom, and was living close to Padilla-Maldonado at the
time.
Padilla-Maldonado did submit her medical record from her August 24, 2015 visit
with a doctor, who noted Padilla-Maldonado’s bruises from her “life partner,” and
observed that Padilla-Maldonado was in a “state of panic, anxiety and depression” and
appeared to be having a “nervous breakdown.” A. 98. Padilla-Maldonado also submitted
an affidavit from her cousin Wendy Morales, whose statement the IJ found “generally
coincide[d] with [Padilla-Maldonado’s] statements,” A. 29; as well as several reports
describing violence against women in El Salvador.
The IJ also noted some minor inconsistencies in Padilla-Maldonado’s testimony,
including allegations of Pablo’s gang involvement,3 and the fact that Padilla-Maldonado
did not mention that after her August 24, 2015 visit to the medical clinic, she was
instructed to obtain an x-ray on her hand. The IJ expected Padilla-Maldonado to provide
further corroboration to explain these inconsistencies.
Ultimately, the IJ found that Turcios and Petrona were key witnesses who the IJ
reasonably expected to corroborate Padilla-Maldonado’s claims, and found Padilla-
Maldonado’s explanation for her failure to corroborate to be insufficient, as either
witness could have submitted an affidavit in lieu of testifying. This, along with Padilla-
Maldonado’s failure to explain the inconsistencies in her statements, rendered her unable
to meet her burden to prove her eligibility for asylum or withholding.
3
The IJ stated that Padilla-Maldonado’s testimony, that she believed Pablo was a
member of a gang based on what others told her, was inconsistent with her written
statement that she knew of Pablo’s gang membership from his gang symbols and tattoos.
9
The BIA affirmed the IJ’s decision in its entirety, and wrote that it agreed that
Padilla-Maldonado did not “adequately explain the absence of reasonably available
evidence concerning material elements of her claim.” A. 7.
We agree that it was reasonable for the IJ to expect Padilla-Maldonado to
corroborate her claims with testimony or affidavits from Petrona and Turcios, when it
appears realistic based on their proximity to Padilla-Maldonado in the United States, and
because they were contemporaneously aware of Pablo’s abuse. We also note that the IJ
provided Padilla-Maldonado with an opportunity to explain her failure to produce these
witness statements and performed the three-step corroboration analysis required by
Abdulai, 239 F.3d at 554. However, it is not apparent from the record that the IJ gave
Padilla-Maldonado adequate notice of what corroboration would be expected of her and
that she would fail to meet her burden absent this corroboration.
Our precedent counsels against faulting Padilla-Maldonado for not anticipating the
IJ’s requirement for corroboration, absent notice. For example, in Toure v. Attorney
General, the IJ “identified the corroborative evidence that she expected and why she
expected it.” 443 F.3d 310, 324 (3d Cir. 2006). However, “[i]t was not until the oral
decision that the IJ indicated that she expected such evidence.” Id. Nor did the IJ give the
petitioner “the opportunity . . . to seek supporting evidence from his relatives in Cote
d’Ivoire. . . . Accordingly, [the petitioner] was not provided with notice and an
opportunity to present an explanation.”4 Id. Moreover, our recent opinion in Saravia v.
4
Although Padilla-Maldonado was given the opportunity to explain why she did not have
corroborating evidence from Petrona and Turcios, in Toure, the petitioner was neither
10
Attorney General, 2018 WL 4688710 (3d Cir. 2018), makes clear that Chukwu is
controlling regarding these aspects of corroboration.
Similarly, we find that in light of Padilla-Maldonado’s testimony which she
supplemented with other corroborating evidence, such as her medical report indicating
abuse-related injuries, and the IJ’s failure to notify Padilla-Maldonado that testimony or
affidavits from Petrona and Turcios would be critical to meeting her evidentiary burden,
Padilla-Maldonado was not given adequate notice and an opportunity to produce this
evidence. If Padilla-Maldonado had been told that a written statement or affidavit would
suffice, given the opportunity, she might have been able to procure them from Petrona
and Turcios. If given this opportunity on remand, and after such notice, she fails to
produce this evidence or provide a reasonable explanation for why, a denial of her claims
for failure to corroborate may be appropriate.
Thus, we will vacate and remand to the BIA to remand to the IJ for further
proceedings in connection with Padilla-Maldonado’s application for asylum and
withholding of removal, consistent with this opinion. However, given Padilla-
Maldonado’s failure to demonstrate that she was likely to be subjected to torture from, or
at the acquiescence of, the Salvadoran government, we find that the IJ appropriately
denied her CAT relief, and that the BIA’s decision affirming the IJ’s findings is
supported by substantial evidence.
given advance notice nor provided the opportunity at the hearing to explain. Both aspects
are important under our precedent. Toure, 443 F.3d at 324.
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V. Particular Social Group Analysis
In Matter of A-R-C-G-, the BIA had determined that the particular social group of
“married women in Guatemala who are unable to leave their relationship” was cognizable
for an asylum claim. I & N Dec. 388 (BIA 2014). The Government has brought to our
attention Matter of A-B-, 27 I & N Dec. 316, 317 (A.G. 2018), in which the Attorney
General overruled Matter of A-R-C-G-and determined that the BIA erred in its analysis
that determined the particular social group to be cognizable. The Attorney General
concluded that this definition was too expansive. Matter of A-B-, 27 I & N Dec. at 319.
The IJ in this case found that Padilla-Maldonado’s particular social group,
“Salvadoran women in domestic relationships who are unable to leave,” paralleled the
proposed social group in A-R-C-G-, thus finding it to be cognizable. While the overruling
of A-R-C-G- weakens Padilla-Maldonado’s case, it does not automatically defeat her
claim that she is a member of a cognizable particular social group. As we remand to the
BIA to remand to the IJ, the IJ should determine whether Padilla-Maldonado’s
membership in the group of “Salvadoran women in domestic relationships who are
unable to leave” is cognizable according to the parameters of A-B-, 27 I & N Dec. at
320.5
5
We will not here attempt to describe all of the Attorney General’s directives in A-B-, but
note that the memorandum indicates that Padilla-Maldonado must demonstrate:
(1) membership in a particular group, which is composed of members who
share a common immutable characteristic, is defined with particularity, and
is socially distinct within the society in question; (2) that her membership in
that group is a central reason for her persecution; and (3) that the alleged
harm is inflicted by the government of her home country or by persons that
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VI. Conclusion
We will deny the petition in part as to Padilla-Maldonado’s CAT claim, grant the
petition in part and remand to the BIA for it to remand to the IJ as to her asylum and
withholding claims.
the government is unwilling or unable to control. Furthermore, when the
applicant is the victim of private criminal activity, the analysis must also
consider whether government protection is available, internal relocation is
possible, and persecution exists countrywide.
27 I & N Dec. at 320 (internal citations and quotation marks omitted).
13